MUSKEGO -- Evidence is being called into question in a 40-year-old Muskego cold case.
78-year-old John Bayerl of Florida is charged with killing his wife in 1979, but his attorneys have asked for the criminal complaint to be tossed because it doesn't explain how he committed first degree murder.
A former prosecutor told TODAY'S TMJ4 those documents don't have to provide all the key evidence.
Bayerl has been a suspect in the 1979 death of his wife, Dona Bayerl, since he first reported her missing from their Muskego home. Now as he sits in the Waukesha County Jail for her murder, he's questioning the state's big break in the case.
"We're living in a world where it's beyond a reasonable doubt and our position is there's not enough in the criminal complaint to support beyond a reasonable doubt that she's even been killed," said Bayerl's lawyer Peter Wolff.
Wolff was taken aback when he first read the court records.
"It's missing the when, the where, the how, of how Mrs. Bayerl was killed if she was," he said.
Bayerl admitted to beating his wife and to having an affair, but he never hinted at any involvement in her disappearance. Her body still hasn't been found to this day.
"If there's facts there, if there's DNA evidence or there's something more, why not put it in there?" Wolff questioned.
Former Waukesha County prosecutor Paul Bucher said there are good reasons why prosecutors leave evidence off criminal complaints.
"You just try to put in as little as you can to try to make sure you're not giving the defense investigators a lead, that they don't go out and start tampering with witnesses or even interviewing witnesses because they get pretty scared," Bucher said.
Bucher said courts are reluctant to throw out criminal complaints, but if that happens here, all the state has to do is rewrite it.
"It's not that the case is over, they just go back and add a few more facts that maybe they left out," Bucher said.
Bayerl is due back in court Monday for his criminal complaint dismissal hearing.